Federal immigration officials say they won’t interfere with the work-release sentence of an illegal immigrant who drove drunk the wrong way on a Milwaukee freeway for five miles and collided with at least one car.
When Milwaukee County Circuit Judge Jeffrey Wagner recently sentenced Armando Rodriguez-Benitez to 11 months at the county jail with work-release privileges, Milwaukee County Sheriff David Clarke protested strongly. He alerted the U.S. Bureau of Immigration and Customs Enforcement in the hopes that Rodriguez-Benitez would be deported immediately.
But that won’t happen.
Instead, the sheriff is now calling for immigration reform.
Officials with the immigration agency wouldn’t comment on the specific case but said they can’t interfere with a sentence that a judge imposes – even if it’s a work sentence and the person isn’t legally authorized to work.
“Technically they’re still in custody, so we can’t touch them until they’re released from that. I don’t think we see that very often,” said Ricardo Wong, field office director for the Chicago office of ICE. “What we do is place a detainer on the person. Once the person is released from custody, whether it’s a bond or sentence, that’s when we come in and get that person and go through our removal procedures.”
Deportation is a separate process that can take years because immigration judges decide what happens to the immigrant and the person may have the option to appeal.
Gail Montenegro, a spokeswoman with ICE, said one reason the agency does not get involved until any criminal charges have been resolved is that it ensures people serve their sentence before possible deportation.
“We don’t interfere with the criminal proceedings because if we did, these criminals would all get deported instead of serving a sentence. It’s sort of ‘evading justice,’ if you will. They’d get to go back and not face any repercussions,” Montenegro said. “So we do not interfere until the criminal process has been resolved.”
For people who don’t have insurance, work release can be the only way to pay for any damages they caused. Rodriguez-Benitez did not have insurance and was driving without a license, court records show. Several cars were severely damaged as drivers tried to swerve out of Rodriguez-Benitez’s way.
Clarke said taxpayers shouldn’t have to pay to keep Rodriguez-Benitez in jail for such a short sentence. He questioned how Rodriguez-Benitez would legally be allowed to work.
“No employer’s supposed to employ an illegal immigrant, so how’s that supposed to happen?” Clarke said. “It just smacks in the face of common sense. If the guy’s not supposed to have a job, if he’s illegally employed, that’s one thing. We’re acting as a co-conspirator to further violate fed immigration law. Which is why I said this sentence doesn’t make any sense.”
Milwaukee immigration attorney Thomas Hochstatter said Monday that an undocumented immigrant would have problems getting employment authorization unless the person is in a narrow category of immigrants with temporary protected status, such as asylum seekers or people who have fled from their home countries because of hurricanes.
“If you don’t have employment authorization and are not a permanent resident or a citizen, you’re not supposed to work and an employer is not supposed to employ you,” he said, adding he understands ICE’s stance of not interfering with a person serving a sentence.
“They’re going to tend to want to be hands off in terms of the criminal process until it’s finished, but that wouldn’t preclude them from going somewhere and fining his employer for employing him without authorization.”
Acting Milwaukee County Chief Judge David Hansher previously said that Wagner didn’t know Rodriguez-Benitez was an illegal immigrant because federal law prevents judges from asking.
A Maryland Judicial Ethics Committee stopped short of that conclusion but said in an advisory opinion in 2009 that a judge may not ask about immigration status at a sentencing. Doing so could lead to a perception of impropriety for a judge, who’s supposed to be impartial and perform the job without prejudice about national origin or race, the committee said. The judge, however, may consider immigration status if it’s presented to the court, the opinion said.
A report submitted to Wagner ahead of Rodriguez-Benitez’s sentencing did not specifically mention his immigration status, only that he was born in Mexico and came to West Allis 2½ years ago. He has been working full-time as a cook at a Milwaukee tavern since 2009. According to the report, his employer said Rodriguez-Benitez is “eligible to return to full-time employment.”
Rodriguez-Benitez drove drunk on southbound I-43 for more than five miles with more than three times the legal limit of alcohol in his blood before a sheriff’s deputy pulled him over around 4 a.m. July 21.
As part of the sentence, Wagner said Rodriguez-Benitez needed to stay sober and that officials should assess whether he needs alcohol counseling. He also reminded Rodriguez-Benitez that he’s not allowed to drive without a valid license.
Clarke said the case highlights the need for immigration reform. He said Congress should work on three components of reform: a guest worker program that allows immigrants to stay for a fixed period of time before going home; a path to citizenship that is quicker than the current process; and better border protection.
“We’re not going to kick 22 million people out of the country. It’s ludicrous to even insinuate we should send them all back. It’s not practical,” Clarke said.
“So some sort of guest worker program as long as you get to stay here for this long and (then get sent) back,” he said. “I don’t know what I want them to do, but I think it’s got to start with sealing the border. If you don’t seal the border, you make it possible for them to come back over.”No tags for this post.